PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE KŪRIS

1. I begin with my dissenting views, which constitute the main thrust of my approach to the present case.

I respectfully disagree with the majority that by imposing a fine for the “non-verbal expression which [the applicant] had made” (as his action is called in § 26 of the judgment) the Hungarian Parliament violated his rights under Article 10 of the Convention. In the circumstances of the case, the imposition of that penalty on the applicant was both proportional and necessary in a democratic society not only from the substantive angle but also from the procedural point of view, with which the majority, as they themselves state, are “concerned”. I find the substantiation of the finding of the said violation utterly defective.

I

2. Mr Szanyi was sanctioned, that is to say was fined, for putting up the middle finger of his left hand at other MPs during the Parliament session. There is no need to enlarge on what that gesture meant and to argue that it was vulgar and outrageous. That “non-verbal expression” was a barefaced, ostentatious manifestation of unparliamentary speech (for further convenience, in this opinion I use the word “speech” in its broader sense, which encompasses also symbolic speech, that is to say body language). Unparliamentary speech, verbal or non-verbal (that is, symbolic expressions ), is by definition grossly inappropriate and unacceptable in all parliaments of the civilised world. Vulgar, obscene expressions may be and indeed are tolerated in many other fields of life (for instance in fiction, theatre, the cinema, etc.). In parliaments, however, they are malum in se , not merely malum prohibitum (even if a prohibitum element often is also there). In a parliament, unparliamentary speech can and must be censured, and an MP who resorts to it can and must be sanctioned, as a rule, by the respective parliament itself and without undue delay. The fact that certain manifestations of unparliamentary speech may at the same time constitute political speech, which is protected inter alia by the Convention, does not prevent those expressions from being unacceptable in a parliament, and therefore constituting an actionable activity. This goes without saying. These are the rudiments of parliamentarianism, but also of civic culture, and not only civic culture, but culture per se .

3. At the material time, section 48 of Hungary ’ s Parliament Act no. XXXVI of 2012, as quoted in Kar á csony and Others v. Hungary ([GC] , no. 42461/13, § 26, 17 May 2016; referred to in § 12 of the present judgment, which states that it relies heavily on Kar á csony and Others ), provided:

“(1) The chair of the session shall call speakers to order if they use an indecent expression that is indecent or offensive to the authority of Parliament or to a person or group, particularly any national, ethnic, racial or religious community, and shall simultaneously warn them of the consequences of using the offensive or indecent expression repeatedly.

(2) The chair of the session shall withdraw the right of members to speak if they persist in using an offensive or indecent expression after being called to order.

(3) If during his or her speech a member uses an expression that is gravely offensive to the authority of Parliament or to any person or group, particularly any national, ethnic, racial or religious community, or the offensive expression used by him or her causes grave disorder, the chair of the session may propose, without calling to order or issuing a warning, the exclusion of the member from the remainder of that day ’ s sitting and the imposition of a fine against him or her.

...

(6) The chair of the session, in the absence of a proposal to apply any sanction referred to in subsection 3, may propose the imposition of a fine against the member within five days of his or her using the gravely offensive expression.

(7) Parliament shall decide on the proposal for the imposition of a fine referred to in subsections 3 and 6 during the session following the proposal, without a debate. The amount of the fine may not exceed one third of the member ’ s monthly remuneration.”

4. The applicant did what he did. Under domestic law the Speaker of Parliament should have called him to order or excluded him from the remainder of that day ’ s sitting. It appears that that would probably have been in line (or at least I hope so) with Kar á csony and Others (cited above), where the Court in no way objected to (albeit without explicitly approving) the respondent Government ’ s arguments that “clearly abusive speech or conduct of an MP nullifies the protection of his or her right to freedom of expression or may be considered an abuse of the right” ( § 155). But it was too late for such immediate intervention, as the Speaker seems not even to have noticed the indecent gesture at that moment (this part of Mr Szanyi ’ s performance lasted for only a second). But that gesture was noticed (and, as the minutes of the Parliament session of that day reveal, even applauded) by some other MPs and caught by the Parliament TV camera and the media. At some later point, having become aware of Mr Szanyi ’ s “non-verbal expression”, the Speaker proposed to impose on him the sanction provided for in section 48 of the Parliament Act. Had the sanction been not applied, it would have been most surprising – not because Mr Szanyi was a member of opposition, but because of the very nature of his “non-verbal expression” and its connotations.

5. In the present judgment, the finding of a violation of Article 10 on the grounds of the imposition of a fine on Mr Szanyi for his “non-verbal expression” is based on three presumptions. The first presumption is that all speech in a parliament is political speech and that all political speech, irrespective of its contents, enjoys high proc edural protection under Article 10; even if an MP clearly, blatantly, cynically misuses and abuses his or her freedom of expression, all procedural guarantees (or “safeguards”, as the two words are used interchangeably in this judgment, but also in Karácsony and Others [cited above], on which, as already mentioned, this judgment claims to rely so heavily) must be available to the abuser, otherwise no sanction can be imposed on him or her for that “political” speech. The second presumption is that an MP may be a person so unintelligent and/or irresponsible that he or she is unable to understand what actions are not tolerated per se in a cultured society and, like a small child, has to be explicitly informed that a no-no is a no-no and that if he or she commits a no-no, a sanction will follow; that information must be provided to him or her under a competitive, quasi-judicial procedure which should satisfy the strict requirements of due process; where such information was not provided to him or her or was provided in some simpler way (orally, for example), that MP is absolved from responsibility. The third presumption is that if an MP resorts to unparliamentary speech, he or she can still not only defend the expression used, in a parliamentary debate, but also legitimately expect that that debate may be used as (that is to say, be converted into) a forum for justifying the respective manifestation of unparliamentary speech, with the result that no sanction will be imposed for even the most obscene “political” expression and that the use of that expression may be forgiven or even encouraged.

The first presumption runs against logic. The second presumption runs against common sense. The third runs against conventional morality and democratic traditions. This analytical partitioning, however, is (as many attempts at such partitioning appear to be) over-simplistic in its manner of reflecting the multiple facets of the three presumptions: in fact, they all run against logic, common sense, conventional morality and democratic traditions, each in its own way.

6. In the judgment, the finding of a violation of Mr Szanyi ’ s right under Article 10 is based on two arguments, laid down in as many as eighteen lines of two paragraphs, namely 31 and 32. The first one relates to a mechanistic parallel between the situation under consideration, in its procedural aspect (that is to say from the angle of the applicant ’ s procedural guarantees under Article 10), in the instant case and the one examined in Kar á csony and Others (cited above), that is to say a parallel in which the essential difference between the two is not taken into account, nor even looked at. The second argument concerns at least one important fact which has not been dealt with, geared to making the finding of a violation look better substantiated and more convincing, at least on the surface.

Let us have a closer look at the two arguments advanced by the majority.

II

7. The parallel between the instant case and Kar á csony and Others (cited above) amounts to effectively putting an equals sign between the two situations in their procedural aspect. The majority explicitly state that the finding of the violation of Article 10 is based on

“essentially the same reasons as the ones set out in paragraphs 148 to 162, in particular paragraphs 151, 154, 156 and 158 in Karácsony and Others (cited above) – notably the absence of effective and adequate safeguards against the abuse of disciplinary powers, the lack of adequate reasoning in the decisions and the non-availability of a parliamentary procedure in which the applicant could have been heard” (§ 32).

This “robotic” parallel, which perhaps could not be drawn any more tersely, allows the majority to conclude, without any “supplementary” reasoning on the merits of this particular case, that the

“interference [with Mr Szanyi ’ s rights under Article 10 on account of imposition on him of a fine for his “non-verbal expression”] cannot be considered “necessary in a democratic society” within the meaning of Article 10 § 2” (ibid.).

But it can be considered – and should. There is a crucial difference between the two cases which should not escape the Court ’ s attention. Even more, the Court should avoid camouflaging any essential difference between the situations under examination by concentrating on their less important distinguishing features.

8. Karácsony and Others (cited above), was about the sanctioning of opposition MPs for bringing and displaying a large placard and banners in the parliamentary chamber and using a megaphone to speak during voting. The Court considered that displaying a placard or a banner in Parliament was not a “conventional manner” for MPs to express their views on a given subject debated in the House and that by having chosen this “form of conduct”, as well as having used a megaphone, the applicants disrupted the order in Parliament ( § 149). The Court stated that the applicants

“had been free to convey the same message in their parliamentary speech stricto sensu and had they done so the consequences of their actions might have been entirely different” ( ibid. ).

Paradoxically enough (or perhaps not at all, given the presumptions underlying the majority ’ s reasoning – see paragraph 5 above), no such suggestion is to be found in the present judgment. The Court does not even hint that Mr Szanyi, too , could have chosen some other “form of conduct” in order to “convey” what he considered to be his “message” (on the condition that there can be some “proper” form of conduct to convey, especially in a national parliament, that type of “message”). Also, in Karácsony and Others the Court stated that the actions of the applicants (that is to say MPs who had displayed the placard and banners and used the megaphone in the parliamentary chamber) were “gravely offensive to parliamentary order” ( § 150). In the present case there is no statement of this sort. Instead, the majority finds it necessary to mention that

“[a] ccording to the applicant and not contested by the Government, during his speech numerous remarks were made” ( § 6).

9. The latter distinction is of not much relevance. In fact, it is not even a real distinction, because, of course, there must have been all sorts of remarks during the protest action staged by the applicants in Karácsony and Others (cited above). On top of that, no one who has listened to or read Mr Szanyi ’ s speech, which is sprinkled with vociferous and highly colourful expressions, would be surprised that during that speech remarks indeed were made. Mr Szanyi ’ s speech and the remarks made during his address are not reproduced in the judgment, but they are to be found in the minutes of the Parliament session; [7] as to the content of the remarks (if any) that may not have been reflected in the aforementioned minutes, no reliable information had been presented to the Court, not even by the applicant. After all, remarks during speeches are far from being uncommon in parliaments worldwide. Middle finger showings are not – so far.

10. The relevant difference between the situation in Karácsony and Others and in this case, the distinction which really matters when the two situations are compared from the point of view of the procedural guarantees (safeguards) under Article 10, lies in the fact that these guarantees are not a goal in itself . The very word “guarantee” (or “safeguard”) implies that making use of them is capable of bringing about a different outcome in an applicant ’ s case. Thus, a “guarantee” which, as a matter of principle, cannot bring about a different result would not be a guarantee at all but a mere formality, effectively a sham safeguard. Procedural guarantees are there not just for the sake of it. They must perform a function .

11. There is a tremendous difference between the conduct of the applicants in Karácsony and Others (cited above) and Mr Szanyi ’ s conduct.

The former, although objectionable, involved a non-obscene political protest and therefore could be defended (as a matter of principle), whereas the “non-verbal expression” of the applicant in the instant case, being committed in the parliamentary chamber, was not defensible at all – on any grounds, under any circumstances. A middle finger is a middle finger. It means what it means. A four-letter word is a four-letter word. Obscenity is obscenity. Period.

12. In the context of the “placard, banners and megaphone situation” examined in Karácsony and Others (cited above), the Court held that a sanctioned MP should dispose of “basic procedural safeguards under parliamentary procedure to contest the disciplinary measures imposed on him or her” ( § 154) and that there must be a “measure of legal protection ... against arbitrary interferences by public authorities with the rights safeguarded by the Convention”, including such “procedural safeguard” as “the right for the MP concerned to be heard in a parliamentary procedure before a sanction is imposed” ( § 156). If these doctrinal provisions, pertaining to the procedural aspect of the applicable provision of the Convention, are read as absolute, any imposition of a sanction on an MP for expression in a parliament without him or her being heard should amount to the denial of the procedural guarantees under Article 10. Pursuant to section 48 (7) of the Parliament Act, the imposition of the fine on the applicant for his middle finger gesture precluded a prior debate. Thus, the majority may seem right in finding a violation of Article 10 in respect of Mr Szanyi.

13. This would be a formalistic, extremely dogmatic self-righteous attitude based on an absolutist, indiscriminate, exclusively verbatim reading of the doctrinal provisions cited above, detached from the situation under examination, to which these provisions are nevertheless applied.

However, these doctrinal provisions do not lend themselves to such an uncritical, indiscriminate, absolutist, extremely formalistic, exclusively verbatim interpretation. They should be read not in detachment from, but in connection with the substantive aspect of the applicable provision of the Convention, which is Article 10. It is a truism that legal procedure has been invented not for its own sake, but it must serve some substance. Legal procedure must be socially useful . Legal requirements, not excluding those set forth in this Court ’ s case-law, must make at least some practical sense . This equally applies to the sanctioned MP ’ s right “to contest the disciplinary measures imposed on him or her”, as expounded in Karácsony and Others .

14. Coming back to Mr Szanyi ’ s situation, one should legitimately ask: what would that debate, which the Parliament Act had explicitly not allowed and which the majority found to have automatically breached the applicant ’ s rights under Article 10, have had to focus on? The judgment does not address this question. It is regrettable. But why not ask it? So, what could be the answer to it?

One possible answer would be that the applicant could have asserted that he had not done what was alleged, that is to say that the accusations were false. But this would be a most unrealistic hypothesis. Such denial would have been futile. By the time the fine was imposed on the applicant, the whole of Hungary had already seen his middle finger spectacle on TV. [8] Naturally, the applicant himself never denied that he had made the gesture. Another hypothetical, but no less unrealistic answer would have been that the applicant pleaded that he did not know that the gesture was not unacceptable, at least in the parliamentary chamber. Come on. This is the Parliament, not a kindergarten, and Mr Szanyi was an elected member of that Parliament. Moreover, as one could infer from his public statements available urbi et orbi on internet, he even seems to be proud of his show. Or (one more hypothetical answer to the principal question not addressed in the judgment) perhaps the Parliament had to debate whether, under any specific circumstances, Mr Szanyi ’ s vulgar gesture could be considered forgivable and thus permissible? This, again, is not serious. In a parliament, unparliamentary speech is unacceptable and therefore actionable by definition.

However, even if there were any circumstances which could hypothetically – even if only in the applicant ’ s mind – justify his gesture, no information was provided to the Court that Mr Szanyi (or anyone else) ever expounded them under due parliamentary procedure or informed the Speaker or any other official of them, if they (they might, for example, consist of remarks made during his speech) overstepped any legal or moral frontier.

This last issue merits a closer look, even it requires going a little beyond the case-file, to the internet.

15. If Mr Szanyi thought that he had some plausible version (however difficult that might be to imagine) which hypothetically justified what he did, he was not prevented from presenting that version to the Speaker and/or to Parliament. More specifically, if the applicant thought that there had been any external cause – namely other than his own spiritual condition, intellect, mentality, mind-set, attitudes, habits or level of culture (?!) – which made him unable, during the Parliament session, to keep the middle finger of his left hand in its normal position, he was at complete liberty to come forward with his version of events. After all, it was he who made the vulgar gesture in Parliament, so arguably he owed at least some kind of explanation to that Parliament (or its Speaker ) ? On the web, one can find several explanations by Mr Szanyi, which I consider rather inconsistent and contradictory, none of them cogently setting out why, or even to whom, he made that gesture, although it seems that the applicant uttered no apology or regret for having done so. Be that as it may, no explanation in the media or in any other non-parliamentary forum can replace an official motion, which has to take place in Parliament. For such an official explanation, the applicant had ample time between 18 March 2013, when he so blatantly misbehaved, and 25 March 2013, when the Speaker initiated disciplinary proceedings against him, and even more time until 28 March 2013, when the plenary voted on imposing the sanction on him.

There is nothing in the case-file to suggest that the applicant ever attempted to provide any official explanation .

17. In Karácsony and Others (cited above), the conduct of the applicants was not malum in se . Therefore, a debate on their conduct where they could “contest the disciplinary measures” was reasonable. Regarding Mr Szanyi ’ s middle-finger gesture, it is difficult to discern the sense which such a debate might have had, had it taken place (see paragraph 12 above). What is more, such a debate would have been counterproductive and undesirable because of its negative educational value . Had such a debate taken place, it would have suggested that what is malum in se in the parliament of a civilised country may in fact be malum licitum and therefore not malum at all. When an MP ends his speech with showing a middle finger to other MPs and, through the intermediary of the parliamentary TV channel and the omnipresent media, to the widest possible audience (national and international), any hint that the sanctioning measures taken by that parliament may be “arbitrary interferences by public authorities with the rights safeguarded by the Convention” (compare Karácsony and Others (cited above), § 156, referred to “in particular” in § 32 of the judgment ) sounds like a sick joke.

18. On the other hand, the Hungarian legislature (just like that of any other member State) is not prevented from laying down, in its domestic law, that even in such cases as Mr Szanyi ’ s a sanctioned MP is granted all the imaginable “procedural safeguards”. As it transpires from Karácsony and Others (cited above), in certain (probably not so rare) cases such safeguards may actually be necessary. It also transpires that the domestic legislation applied in that case was far from perfect. If these procedural safeguards are not provided when they are necessary, the finding of a violation of Article 3 would probably raise little doubt. However, if such safeguards are not necessary or if their use would even be counterproductive, as in Mr Szanyi ’ s specific case, then refraining from providing for them in legislation should remain within the margin of appreciation of the member States.

19. This Court was not intended as a supra-national constitutional court, never mind as a supra-national legislature for internal parliamentary procedures. Therefore (but not only because of that), it should be very careful about prescribing the inclusion of certain requirements in national parliamentary procedures. Even more so, the Court should not force the re-writing of national parliamentary procedures on the basis of its own doctrinal provisions, which are usually drawn up in respect of one specific situation, by interpreting them in such an absolutist, dogmatic, mechanistic manner that they become effectively universal and have to be rigidly applied to all other situations, ignoring the factual specificities of the latter. The Court ’ s doctrinal prescriptions must be kept under constant supervision in order to prevent them from becoming too insensitive to the specificities of the individual cases under consideration, let alone being blindly applied to all cases which superficially resemble that in respect of which the respective doctrinal provision was first formulated.

20. As mentioned above, according to domestic law the imposition of the fine on the applicant had taken place without a debate. That legislation, as it transpires from Karácsony and Others (cited above), is deficient, at least to the extent that it does not allow such a debate in cases where it would be useful and meaningful.

Nevertheless, what this Court must focus on is not the legislation (in particular, that on parliamentary procedure), but its application, because justice or injustice is done to an applicant when the law is applied to him or her. The application of a domestic law, even a deficient one, does not always necessarily entail the violation of a provision of the Convention.

21. If one is concerned not only with the legislation applied but also with its actual mode of application, one could ask (and the Chamber should have asked): has the applicant in the instant case, Mr Szanyi, suffered injustice by being sanctioned by the Parliament for his “non-verbal expression”?

Definitely not.

22. Even though in most instances a sanctioned MP should have at his or her disposal “basic procedural safeguards under parliamentary procedure to contest the disciplinary measures imposed on him or her” (see § 12 above), situations may occur where the use of such safeguards would do a disservice to democratic culture .

Mr Szanyi ’ s case is precisely of this type. By refusing to allow a debate before the vote on the imposition of the sanction for resorting to the unparliamentary speech at issue, the Hungarian legislature has a priori sent a clear message that a taboo is a taboo, and that foul-mouthed ribalds who blatantly and cynically abuse their freedom of expression will not be given a bonus – a chance to publicly contest what may be called a healthy reaction to such abuse, which is what, in fact, the imposition of a fine on the abuser represents. It is Mr Szanyi ’ s problem that he did not understand or, worse still (although judging from his statements on the web, this would actually seem to be the case), deliberately ignored civilised societies ’ “thou-shalt-not” message, which was absolutely clear.

23. Nevertheless, even after having flouted that message, the applicant did in fact enjoy one – most important! – procedural guarantee, namely the fact that the fine was imposed on him not unilaterally by the Speaker (who initiated the sanctioning procedure) but by a parliamentary vote. It takes a great deal of imagination to consider that imposition as “arbitrary interference by [a] public authority” (compare Karácsony and Others (cited above), § 156, referred to “in particular” in § 32 of the judgment ) with Mr Szanyi ’ s right under Article 10.

III

24. The second argument underpinning the finding of a violation of Article 10 is no less bewildering than the first one. It is largely a factual argument.

25. The majority finds it necessary to express its “concern” that the Speaker ’ s proposal to impose a fine on the applicant

“does not offer any transparent description of the impugned conduct, nor a consideration of the circumstances or detailed reasons for the decision” ( § 31).

It also finds that there was a “ lack of adequate reasoning in the decisions” ( § 32) .

Are these allegations weighty enough to substantiate (together with the first argument) the finding of a violation of Article 10? I think not.

26. Let us first of all examine the allegation that the Speaker ’ s proposal “does not offer any transparent description of the impugned conduct, nor a consideration of the circumstances or detailed reasons for the decision ”. This reproach is artificially stretched out to conclude that there has been a violation of Article 10. What allows me to assert that this reproach is “stretched out” is that it is factually incorrect, and that that factual incorrectness is masked. The description of the conduct, which the majority says is missing, is indeed provided, and is pointed out in the Speaker ’ s proposal. The Speaker, in his proposal, which is reproduced in § 7 of the judgment, refers to the minutes of the Parliament session. The minutes are a publicly accessible official document. They graphically and unambiguously describe the applicant ’ s actions. The relevant passage of the minutes reads:

“ Dr. Tibor Szanyi sat down, then pointed the middle finger of his left hand to the left” (“ Dr. Szanyi Tibor leül, majd a bal kezének középső ujját felfelé tartva balra int. ”).

27. It will always remain a mystery for the readership, why and how one could assert that the Speaker ’ s proposal does not offer “any transparent description” or “ consideration”. Not “any”?! But this is the expression used, this is precisely what the majority say.

Maybe it is only a lapsus linguae and the majority wanted to state that there was “too little” “transparent description” or “ consideration”? This hypothesis would be worth exploring, as of all the possible hypotheses it is the only one which could give some weight to the majority ’ s argument.

But, as we shall see below, it does not.

28. So, what is not transparent in the description provided above, which even a child would understand? Nothing. What “circumstances or reasons” are not considered? None of any relevance. Indeed, h ow “detailed” would the “consideration of the circumstances or reasons for the decision” have to be in order to be sufficient for the majority? Is it not enough that the Speaker refers to the minutes of the Parliame nt session, which state that Mr Szanyi “pointed the middle finger of his left hand” at other MPs, and calls that gesture a “blatantly offensive expression”? On top of that, the Speaker also refers to section 48 (3) and (6) of the Parliament Act, enshrining his power to propose the sanction to be imposed on any MP who “uses an expression that is gravely offensive to the authority of Parliament or to any person or group”.

What other “detailed” reasons should be provided in a document like this? Since when have Speakers of Parliament been required to write treatises instead of drawing up simple and clear procedural motions?

In view of the fact that Speaker ’ s proposal refers to both the Parliament Act and the minutes of the parliamentary session and that it provides the prima facie assessment of Mr Szanyi ’ s conduct, the majority ’ s reproach that the Speaker ’ s proposal “does not offer any transparent description of the impugned conduct, nor a consideration of the circumstances or detailed reasons for the decision” is void of any factual content. If I may be permitted to use the Court ’ s “routine” vocabulary (albeit for different reasons), this allegation is manifestly ill-founded .

29. References to other documents are a usual and a perfectly legitimate practice in all sorts of legally relevant acts, and so far not only have not been questioned but have been routinely resorted to by this Court itself. For instance, this very judgment extensively refers, in §§ 12 and 32, without reproducing the text, to the Court ’ s judgments adopted in other cases. And this is perfectly legitimate. It is practical, pragmatic. References save time and resources. References, especially to publicly accessible sources, do not make the text which contains those references opaque (or insufficiently transparent).

30. It is not that mysterious alleged lack, in the Speaker ’ s proposal, of “any transparent description [or] consideration ” which poses a problem. It is the lack of transparency in the reasoning on which the finding of a violation of Article 10 in this judgment is based. I really mean it. What is really not “transparent” in the instant case is this very judgment . It is not transparent because it does not cite or otherwise refer to the minutes of the parliamentary session to which the Speaker refers and wherein the impugned conduct is described in – as has been already shown – ­ sufficient “detail” . The omission of this important factual detail may c reate, in the minds of readers of the judgment, an erroneous impression that the aforementioned minutes are not sufficiently clear about the applicant ’ s conduct. In fact, they are absolutely clear. The only problem is that not every reader will consult them (after all, they are in Hungarian, which is certainly not an easy language). Still, the minutes are there, so the “transparent description” is there, too. Why pretend that it is not?

31. I now turn to the second allegation – that there is a “lack of adequate reasoning in the decisions” (§ 32). It is no less perplexing than the one just examined. First of all, it is not clear what “decisions” the majority have in mind. Why in the plural? How many decisions were there? There was the Speaker ’ s proposal to impose a sanction on Mr Szanyi, to which the Parliament voted in the affirmative. One proposal ­ – one decision.

Alright, the plural may also be a lapsus linguae . Let us limit ourselves to the single decision by the Parliament. Again, this document (just like the minutes of the Parliament session dealt with above) is not reproduced in the judgment. But such reproduction may be not necessary at all. One should not be surprised if that decision indeed lacks any detailed reasoning. Does it make that reasoning which it contains not “adequate”? Of course not, because that affirmative vote, whatever its documentary form, should be seen in context – in this case in the context of the Speaker ’ s proposal and the documents referred to therein, as well as in the context of Mr Szanyi ’ s performance on the parliamentary TV channel, with which, by the day of the decision, the whole of Hungary had many opportunities to familiarise itself.

As a rule, such decisions by parliaments (not just the Hungarian one) do not contain any explicit reasoning. In this particular case, the reasoning had been provided by the Speaker, who – I repeat – referred to other documents and called Mr Szanyi ’ s gesture a “blatantly offensive expression”. What else? Should the decision have contained a thorough analysis as to whether the middle finger is indeed an “ indecent expression” and “gravely offensive to the authority of Parliament or to any person or group” (to use the language of section 48 of the Parliament Act)? An explanation that a middle finger is a no-no? It is obscure what “reasoning” would have satisfied the majority as “adequate”.

32. In K arácsony and Others (cited above), the Court considered that “any ex post facto decision imposing a disciplinary sanction should state basic reasons, thus not only enabling the MP concerned to understand the justification for the measure but also permitting some form of public scrutiny of it” ( § 158). As already mentioned, in the present judgment the Court refers to this paragraph “in particular” ( § 32). This reference makes this argument one of the decisive ones for finding a violation of Article 10.

33. Just as I disagree with the uncritical, indiscriminate, absolutist, extremely formalistic, dogmatic, exclusively verbatim reading of the doctrinal provisions from Karácsony and Others (cited above) to the effect that a sanctioned MP should have at his or her disposal “basic procedural safeguards under parliamentary procedure to contest the disciplinary measures imposed on him or her” and that there must be a “measure of legal protection ... against arbitrary interferences by public authorities”, including “the right ... to be heard in a parliamentary procedure before a sanction is imposed” (see § 13 above), I also object to the equally uncritical, indiscriminate, absolutist, extremely formalistic, dogmatic, purely verbatim reading of the doctrinal provision that “any ex post facto decision imposing a disciplinary sanction should state basic reasons, thus not only enabling the MP concerned to understand the justification for the measure but also permitting some form of public scrutiny of it”. This would amount to the Court setting forth an extremely rigid universal rule for the member States ’ national parliaments in what has traditionally been their domain.

34. To wit, there can be situations in which stating such “basic reasons” in that particular decision (document) is not necessary at all. Therefore, the absence of such a statement of reasons cannot even minimally add to the substantiation of the finding of a violation of Article 10.

Again, Mr Szanyi ’ s case is precisely of this type. To suppose that because of the “ lack of adequate reasoning in the decisions” (in fact, one decision) this particular MP was not “enable[d] ... to understand the justification for the measure” would be contrary to common sense, because (I have to repeat myself; compare § 5 above) MPs are usually not unintelligent and/or irresponsible enough not to understand what actions are not tolerated in a cultured society and to have to be explicitly informed that a no-no is a no-no.

However, such a supposition would not only run counter to common sense. In the instant case, it would be unfair to Mr Szanyi himself, who, ironically, falls victim of the presumption (or prejudice?) that (at least some) MPs are not able to understand what almost every child does, namely the difference between “go-ahead” and “off-limits”.

35. As to the “some form of public scrutiny of [the measure]”, also indiscriminately – by an “umbrella” reference ­ – imported from Karácsony and Others (cited above, § 158) alongside the supposition that an MP may not be able to understand the reasons for the penalty imposed on him or her, its application in the present case does not take into account the obvious fact that not only was the measure publicly delivered and reflected in the minutes of the Parliament session of the respective day, but also Mr Szanyi ’ s performance, due to the TV, internet and other media, has already become, in Hungary, public “property”. As to what else might be needed for “public scrutiny”, the judgment does not clarify.

IV

36. My principal disagreement with the majority pertains to the assessment, under the Convention, of t he imposition of the fine on Mr Szanyi. But I must add a number of further remarks.

37. I find much to commend in Judge ’ s Wojtyczek ’ s approach (laid down in his dissenting opinion) to the inapplicability of Article 10 to speeches pronounced or actions performed in a national parliament. Still, my position is less extreme.

38. In my opinion, even if not all political speech falls within the ambit of Article 10, some of it may do. In the present case, the interpellations by Mr Szanyi contained both elements which fall within that ambit and elements which do not. Without going into greater detail, I admit that I had to sacrifice my genuine reservations as to the latter in order to be able to examine – with the majority – the former.

39. Having said that, I have to express my disagreement with the doctrinal statement that

“interpellation ... constitutes political speech, undoubtedly protected by Article 10 of the Convention” (§ 26; emphasis added).

Of course, there can be doubts – and very legitimate doubts. This doctrinal statement by the majority is not founded, to say the least. It is a further reflection of an absolutist, uncritical approach to issues under Article 10, on which this judgment is so heavily based. The majority seems to pay no attention whatsoever to the fact that Article 10 is somewhat exceptional in the whole context of convention law. It is one of the two Articles (the other being Article 5 of Protocol no. 7, but from a rather different angle) which explicitly mentions the responsibilities of right-holders and the only Article which mentions their duties .

Most regrettably, this judgment is not the only one where the right-holders ’ duties and responsibilities, which should be inseparable from freedom of expression, tend to be ignored.

40. I agree with the majority in regard to point 6 of the operative part of the judgment, which stipulates that “the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant”. For me, however, the “violation” mentioned in this point is the one found in point 4 of the operative part (“there has been a violation of Article 10 of the Convention in respect of the banning of the applicant ’ s interpellations”), but not point 3 (“there has been a violation of Article 10 of the Convention in respect of the fine imposed on the applicant”), with which I strongly disagree.

41. However I voted against point 7 of the operative part, which contains, inter alia , a proviso that the respondent State is to pay the applicant EUR 450 (that is, the amount of the fine imposed on him), “plus any tax that may be chargeable, in respect of pecuniary damage in the event the applicant has already paid the fine”.

Is difficult to grasp either the awarding of pecuniary damage or the proviso. The Government had informed the Court – as explicitly stated in their submissions – that the fine imposed on the applicant was not paid by him. Also, the fine seems not to have been deducted from the applicant ’ s income, property or bank account. Mr Szanyi himself had not submitted any documents showing that he sustained “pecuniary damage” on account of the fine imposed on him. What is more, immediately after the imposition of the fine on the applicant he had publicly stated (again, the statement is available

on the web [9] ) that he was not going to pay that fine (and that there was no legal mechanism allowing for deduction), but would rather “go to Strasbourg”. Which he did.

It is a usual practice of the Court that in such cases, where the applicant fails to substantiate the pecuniary damage allegedly sustained by him, the Court does not award it. In the instant case, however, not only had the applicant not shown that he had sustained any “pecuniary damage”, but, as one can infer from Mr Szanyi ’ s public statement referred to above (the content of which is, in fact, confirmed by the Government in their submissions), he had not paid it. Had the applicant done so after his petition was lodged with the Court, he was under an undisputed obligation to additionally inform the Court of this new development. Which he did not do.

In the absence of any evidence that the fine had been paid (or deducted), the Court should have not speculated as to whether the applicant might have paid the fine. This inconsistency probably will leave readers guessing why this particular applicant has been granted such preferential treatment.

42. The majority admit that the applicant ’ s conduct was inappropriate. That being so, the admittance (once in the whole text) is worded in such a way that that inappropriateness does not seem to raise any special concern f or the Chamber (unlike the Speaker ’ s proposal, which allegedly, but not in fact, “does not offer any transparent description of the impugned conduct, nor a consideration of the circumstances or detailed reasons for the decision”) . This admittance reads:

“[T]he Court considers that the interference consisted in the application of a sanction in a process where the procedural guarantees and those of the appearance of non-partisanship were insufficient, even if the applicant ’ s non-verbal expression was grossly inappropriate and vulgar” ( § 31; emphasis added).

Procedure over substance. The former matters a lot, the latter effectively nothing.

43. It is somewhat ironic that o n the day following the Chamber ’ s vote on the judgment in the present case (that is to say before the judgment was made public) the President of a distant Pacific archipelago State, while addressing, in a public speech, the European Union, showed his middle finger – symbolically to the EU – and uttered a four-letter word aimed at the latter body, thus “transparently” and “adequately” explaining, what that gesture meant. This made news worldwide.

Still, as our civic – and legal – culture now stands in the light of the present judgment, no one in Europe should be offended. The Strasbourg Court considers this eloquent gesture (and who knows how many other

“non-verbal expressions”?), even when made by an MP in a national

parliamentary chamber and on parliamentary TV camera, to fall within the scope of the notion of the freedom of expression and to indiscriminately, without exception, enjoy – as political speech – all the procedural guarantees under Article 10 of the Convention.

How far we have progressed !